12 May 2007

When the media started reporting the arrest and first court appearances of Daniel James, I immediately noticed that they concentrated on many irrelevant issues, such as the fact he had been a salsa dancer and teacher. Years before, the media created similar distractions about my own background, when they tried to make me appear weird or unusual because I had an interest in flamenco dancing, and that I liked to entertain my friends at dinner parties.

Typical photograph used to discredit Daniel James

It was widely publicised that about ten years ago Daniel James had changed his name, from his original Iranian name of Esmail Gamasai, and that he had become a British citizen in 1986. It is this focus on such details that we are expected to view as “suspicious”, although there are probably very good and innocent reasons why anyone might change their name or their citizenship.

Attention to unrelated issues is typical of the way the media operate in the UK, and they want to show that people accused of the serious crime of espionage must automatically have something wrong with them - the media attack their victim for being different from the norm. Another feature of Daniel James’ character was that he liked to work-out in the gym - now, how many people do that every week? If we listen to the stories the media come up with, then we would be locking up a lot of people for dancing salsa and pumping iron, as if this would indicate abnormal behaviour or anti-British sentiments.What we should really be looking at are the facts of this case, and the details of what Daniel is alleged to have done, and so far there is a lack of any real information to demonstrate what he did, if anything, to damage British interests. All we can be certain of is that the Prosecution at Daniel James’ trial will do all in their power to ensure we never find out exactly what he has been accused of, and if he is found guilty we will be told he has done something really dreadful which endangered British lives.

However, as I found from my own very low level of security clearance, I didn’t actually need to have access to secrets to be accused of passing them to a foreign power! This is the shocking thing about the way the Official Secrets Act works: the accused can be presented to the jury as somebody who may be inclined to pass secrets to an enemy, and behind the in camera protection of a secret kangaroo court, the jury will be invited to find the defendant “guilty” on some remarkably flimsy evidence. But then, we are not allowed to see the evidence, as it takes place behind the closed doors of a courtroom with no public or media present. The pretence is that the evidence would prejudice national security.

The claims we have seen so far allege that Mr James communicated with a “foreign power”, on 2 November 2006, and that this involved breaches of security involving highly-restricted material. It would appear that Daniel James is alleged to have passed secret information to Iran about military operations in Afghanistan - an offence under the Official Secrets Act. But precisely what he is accused of doing is still not clear, and this is likely to remain the case unless the MoD decides to explain what happened.

As a Territorial Army Corporal, Daniel James had a fairly unique talent for being able to speak Dari, a local dialect of Farsi spoken in Afghanistan. In this capacity he was able to act as an interpreter and aide to General David Richards, Britain's commander of NATO forces in Afghanistan. Mr James was one of the general’s key links with the local Afghans and their tribal leaders.

Daniel James was based at NATO headquarters in the capital Kabul, and he was present with Gen. Richards during meetings with Afghan leaders, so that he could translate documents, letters and speeches as necessary. He was also able to comprehend and pass-on to the General the mood of the Afghan people they met. However, Mr James says he was never called on to translate confidential or secret documents. So, if Daniel James was not party to any secret information, what could be the offences that he is now alleged to have committed?

Due to the lengthy investigations that OSA cases involve, it is unlikely that the trial will take place before January 2008, and Daniel James has another court appearance on 15 June 2007 for a plea and case management hearing.

Yesterday, I wrote again to Daniel James offering him the benefit of my experience at having suffered the same ordeal of an Official Secrets Act prosecution. I print below the letter that I sent to Daniel.

I made contact with your solicitor David Martin (I have copied some email correspondence below) but he has not contacted me again since January. This may be because he can see no advantage from the help I can offer your Defence, but I would like you to know that this is the current situation, if you were not already aware of it.

I have kept my eye on any developments in your case, but have seen nothing so far, at least nothing that can be published. I take it therefore that it is still planned to put you on trial under the OSA, and that you are responding to your solicitors questions about the evidence the CPS are disclosing to the Defence. This is the stage where you must do the maximum preparation to find all possible arguments and evidence to counteract the Prosecution’s claims, and you must second-guess what they may say about that evidence once you go on trial. I don’t want to scare you, but you must expect that witnesses will come out with some new evidence, or a different interpretation of that evidence, once they are in the witness box. This is a standard way of wrong-footing the Defence by ambushing you and trying to make your case look weak.

As you near the trial, the next major stage will be the hearings that are held to decide which evidence/witnesses will be admissible at the trial. This is where you are likely to be shocked at how biased the judge will be. It is very likely that you will hear the judge allowing in virtually all the evidence the Prosecution wants to use against you, even when it is clearly not relevant and very prejudicial against you. The way the OSA works means that the Prosecution will get more favourable treatment than you might expect in an ordinary criminal trial. Then, you will be equally shocked to hear the judge rejecting most of the Defence’s arguments that certain evidence should not be allowed in the trial. Effectively, these admissibility hearings are when your trial is being “fixed” in favour of the Prosecution case, and unless your Defence team fight tooth and nail for you, this is where you chances will be lost, i.e. before the trial even starts. The Defence should appeal against bad decisions, not like my Defence who just passively accepted the judge’s rulings. Remember this point clearly, because I don’t want you saying you were not warned.

I assume you are still with the solicitor David Martin and the firm of Peter Kandler. I am not trying to undermine your faith in this company, but I wonder why you chose them to represent you? They would not be an obvious choice for an OSA case, I would have thought. My own experience is that I simply went with the solicitors who came to the police station and were offered to me by the police. That was the worst decision I could have made, because those solicitors did not do a good job of representing me and preparing for my trial. Most duty solicitors who attend police stations are “tame”, because they want the rich pickings of easy Legal Aid money.

I would have thought you would have preferred a high-profile Asian solicitor, such as Imran Khan, who has played a major role in fighting injustice, and in my experience Asian solicitors do not mildly accept bad decisions and incorrect legal procedures in the way that English lawyers do. English lawyers are a bunch of wa**ers in my opinion. Anyway, the choice of lawyer is up to you, and this is one of the few things you really do have control over.

Sadly, it will not affect me if you are found guilty and receive a 10 or 15 year prison sentence, but I do not want that to happen if you are an innocent man. Probably you think your Defence is being correctly dealt by your solicitors, and so I wish you good luck that you can defeat the Prosecution’s arguments at your trial. If you think I can help you, then I will do anything I can to assist you. If you would like a friend or relative to discuss this with me, then by all means let them email me or phone me, and I will explain any points to them. But I do not want to interfere if you think that is what I am doing, and so please tell me to get lost if you don’t wish me to pursue this any more.

Meanwhile, try to keep your outlook positive, and remember that the next few months are the most important time to prepare yourself for the trial.

Yours sincerely,Michael John Smith

Copies of email correspondence:

from Mike Smith <parellic@googlemail.com>to clerks@charterchambers.comdate Jan 17, 2007 5:07 PMsubject For the attention of Mr Paul RaudnitzDear Mr Raudnitz,I am today putting a letter to you in the post, but I thought I should also send it by email in case you would prefer an electronic copy. Therefore I attach a letter in MS Word format and a PDF document of an article I have written.I thought this material may be of interest to Mr Daniel James. I would have contacted his solicitors, but I cannot seem to find any contact details for them, which I thought was rather odd.Kind regards,Michael John Smith2 attachments:Letter to Daniel James 17 Jan 07.docLobster M J Smith article.pdf

from Mike Smith <parellic@googlemail.com>to Paul [he is a contact of mine]date Jan 24, 2007 3:13 AMsubject The Daniel James caseHello Paul,I noticed on this forum that there was some rumour that wiretaps had discovered evidence against Daniel James:

Dear Mr Raudnitz,Were you aware that a forum in the USA has a discussion that Daniel James was “caught” through NSA wiretap evidence. No doubt experts will be called to confirm any such wiretaps. Is it an issue in this case that the USA were spying on a British General, David Richards?Michael John Smith

Dear Mike Smith.I am Mr. James solicitor. Thank you on behalf of my client for the assistance that you are offering. Mr James received your letter of 17th January and we have discussed it together. We also read you article for Lobster about your case and I have seen the Discussion forum you mentioned to Paul Raudnitz.

Perhaps if you send any more correspondence you could address it to me rather than Paul Raudnitz.

Dear Mr Martin,Thank you for your reply, and I am glad that we have been able to make contact.

I can imagine the feelings Mr James has been going through, because I suffered the same physical and mental pressures that his imprisonment will have caused him. If I can do anything to prevent him receiving an unfair trial, then I believe it is my duty to offer my experience as an example to avoid making the same mistakes that occurred in my case.

You will note in my letter of 17 January that I stressed the point about the use of "in camera" as a tactic of the prosecution. Even though there was almost nothing in my trial that would have merited excluding the public, my lawyers went along with the prosecution argument that about half my trial should be heard "in camera". This is where I think the Defence lawyers have to bite the bullet and fight for as much of the trial to be in public as is possible. It is to late, when Mr James has been found guilty, to realise that the "in camera" applications were simply exaggerated claims to hide the case from public view. I know from my case how this works, and I think you would considerably enhance Mr James's chances by reducing the "in camera" part of the trial to an absolute minimum. I would go so far as to say the main battle you have to fight will be pre-trial, to oppose the prosecution tactics that I am sure they will use against your client.

Because I ended up being found guilty it has proved extremely difficult to overturn my conviction. Even though I have subsequently proved key technical evidence was false, the CCRC has been unwilling to accept or even understand that this could overturn my conviction at appeal. It is clear the Crown is very unlikely to give way on any points at all in an OSA case.

You will have read in the Lobster article that a Technical Director at Marconi provided the justification that the main exhibit in my case came from the ALARM missile. It was only 2 weeks ago that I finally managed to phone this Technical Director, and I was horrified to discover that he was not the Technical Director responsible for ALARM (he worked at a completely separate part of the company), and he had no more knowledge about ALARM than a layman. It is not surprising, therefore, that this Technical Director had no recollection of discussing the matter with the witness Professor Lewis - at best it was double hearsay evidence that led to my conviction. There are other technical issues that are still unresolved to this day. But the point I am making is that having used false evidence at my trial, the Crown (and MoD) continue their cover-up to prevent me getting to the truth, and this is what you will be up against as well.

You will have noted the points I made regarding the forum I came across. I have found another forum with similar issues being discussed here.

I am not offering this as useful evidence or proof of any sort, but what is curious is why somebody would have linked Mr James's case to NSA wiretapping? Possibly the Reuters reporter was the source of that point. What it would indicate, if true, is that there was a serious cause for concern about why the NSA should be listening to a British General's communications. It appears this would be illegal in the USA, and that raises some interesting legal issues I think. Have you considered asking the Crown for confirmation that the NSA were involved in intercepting any radio/telephone links that involved Mr James?

If you think it would help Mr James, then I am willing to visit him in prison. This would at least offer him moral support that there is somebody who understands what he is going through.

11 May 2007

Like many others, I heard about the arrest of Daniel James through a BBC news broadcast. There are several reports on the BBC website about his case, and this appears to be the last one.I was immediately concerned at the way the story was being presented, and the apparent distortions that were being put out in various newspapers. For example, one common detail that was sent around the world is the claim that Daniel James is the first person to face charges under Section one of the Official Secrets Act for more than 20 years, since the trial of Michael Bettany. This is simply not true, as my case was under Section 1 of the OSA, and that took place in 1993.

I could see obvious warning signs, that the same lies and bias would be thrown at Daniel James as had been used against me - both before, during, and after my trial. I hope to be able to use the experience of my own case to help Daniel James, and so I wrote to him in prison in January 2007.From: Michael John SmithE-mail: parellic@googlemail.com

I was sorry to hear about your arrest and the decision that you are to stand trial under the Official Secrets Act. If you wish I would like to offer my experience to help your legal team to prepare your Defence, as I have been through the complete cycle that you are just starting out on.

The reason for my interest in your case is that I was convicted in 1993 of 3 counts under Section 1 of the OSA, and I was sentenced to 20 years imprisonment. Special Branch, the MoD, MI5 and the CPS all had an input into my case, and they all used underhanded tactics to ensure my conviction. As OSA trials are quite rare, it is possible your Defence team have never been called on to prepare for a trial under this Act, and so I believe it would be useful for them to see how it worked in practice in the build-up to my trial. Unfortunately, it turned out that my own lawyers were deficient, and they made some fundamental mistakes. I would hope you can learn lessons from my case, as you could encounter the same issues as I did, and you must give yourself the best possible chance to avoid being found guilty.

You should be aware that charges under the OSA are very difficult to defend against, as even the suggestion that you might have had some hidden thoughts to act against the interests of the UK would be enough grounds to convict you. This is why it is hard to convince the jury you are innocent, because the prosecution could dig up one little piece of evidence to put a doubt in the jury’s mind. There were several such issues at my trial, including a 15 year-old tourist map of Oporto with crosses marked on it - I was astonished that in the hands of the prosecution this map was presented as part of the instructions given to me for a KGB training mission. There was no truth whatsoever in the prosecution’s claim, but put alongside other equally unproven allegations the prosecution pieced together a fictitious story based on circumstantial evidence.

From what I have heard about your case so far, I would expect that the same type of weak evidence will be turned into quite definite arguments that you had some motive to break the OSA, and that there is evidence to show you have lied or acted in a suspicious manner, or that you have unexplained income, and then the jury will be invited to see that your character is flawed. I tell you, I was amazed when I listened to the prosecution talking about me, as it sounded like they were referring to somebody else completely.

You should examine very carefully all the evidence that will be used in your case, and prepare for surprises in the way this could be presented at a trial. But even before you get to a trial there will probably be damaging leaks to the press. Only 4 weeks after my arrest I was surprised to read in the Sunday Times a harmful article about my case, including details of crimes they alleged I had committed, which I was never even charged with !

But one of the tactics used by the prosecution is the old trick of claiming that your case will involve damaging material that cannot be heard in public, and the judge will rule that your trial must be held “in camera”. This was used in my trial to hide the fact that no secrets were involved in my case, and that there was no actual evidence I had been in contact with the Russian intelligence service, but this didn’t stop the prosecution continually telling the jury that this evidence did exist. From my experience an “in camera” trial is designed to allow the prosecution to lie and present illogical arguments, which they would not get away with in a public trial.

So, if there was one thing I would advise you to do - if you know there is nothing “secret” or “damaging” in your case to UK national interests - it is to strongly challenge every application for holding hearings “in camera”. I cannot emphasise this point enough, because if your trial goes ahead behind closed doors you are in serious danger of losing.

You can give yourself a better chance to beat the prosecution by publicising your defence case as widely as you can. You may not get your points printed, but it will create a groundswell of opinion that there is something wrong with the prosecution case, and that will hopefully convince the prosecution to drop the case before trial. Make sure you contact as many influential people as you can do, such as your Member of Parliament and anybody you know in the media. Your campaign should be under way now, because against the OSA you cannot rely on the legal process alone.

When I was arrested I believed the Law would produce the right result, and I was shocked to learn that trickery by the prosecution won the day. Don’t fall into that trap.

I attach a copy of a 4-page article I wrote that was published in Lobster magazine in December; it only outlines the main issues, but it gives an idea of what happened to me. More importantly, get your lawyers, family, relatives and friends to read about how the OSA worked in my case. I have written a lot about it and given links to the actual documents from my trial on my blog here:

I wish you the very best of luck that you are found “not guilty”, but do not leave this to chance or think that the jury will automatically believe you. You will have to use all the methods you can to beat the system. The OSA is not a fair Act, and it puts the duty on you to prove that you are innocent rather than the other way round. If I can help in any way then let me know, but you will have to decide how you want to handle your case, and I respect that.Yours sincerely,Michael John Smith

10 May 2007

Yet again, we see the heavy hand of the UK’s Official Secrets Act being used to send people to prison, for the crime of leaking “sensitive” information contained in a four-page memorandum dated 16 April 2004. David Keogh was sentenced to 6 months in prison and Leo O'Connor to 3 months, as reported by the BBC.As in my own trial, I know how outrageously exaggerated the Prosecution’s claims can become in an OSA trial, and I have no faith that their accusations in this case - that “lives could have been put at risk” - is anywhere near the truth.

The “secret” memo about the Iraq war, detailing talks between President George Bush and Prime Minister Tony Blair, is presented as important and militarily vital material that must not see the light of the day for decades to come. However, when the public finally get to read this document, no doubt it will reveal far more about the “special relationship” between the USA and the UK than it does about the War in Iraq.

The major issue that was leaked, apparently contained in the memo, was the claim that President George Bush's was planning to bomb the Arab satellite station Al-Jazeera in Doha, Qatar. If true, this puts a whole new light on the previous US attacks on Al-Jazeera offices in Iraq in April 2003 and Afghanistan in November 2002, which were claimed to be "accidents". An Al-Jazeera journalist was killed when the Baghdad office was hit during the bombing campaign.

As in so many cases before, the Official Secrets Act is used as a tool to prevent the disclosure of facts which the public have a right to know. How much of the memo really was “secret”? The rumour is that the memo should not be made public because of the light it sheds on Tony Blair’s position over the Iraq War. It is so much more likely that the document had to be suppressed to prevent embarrassment to Bush and Blair, than for any threats it posed to our real national interests.

We can all witness the incredible mess that has been created by the Iraq War, and the futile attempts that are being made to get that country back on its feet. Meanwhile, the reasons for going to war have still not been adequately analysed. The big US corporations simply get on with their task of robbing Iraq of its wealth, as part of the clean-up operation.

It is a tragedy, that two men have to go to prison for attempting to make public a document about the War in Iraq; but the real villains, those who started the war and have condemned thousands to die, receive no prison sentence. Rather than telling us that a four-page memo could put lives at risk, I would suggest people like Tony Blair are in fact responsible for the deaths of actual members of the British armed forces. It is a strange form of justice that protects those responsible for an illegal and deadly war, and lets the perpetrators walk free, while those trying to reveal the truth about that war get punished.